Citation Nr: 0033076
Decision Date: 12/19/00 Archive Date: 12/28/00
DOCKET NO. 97-02 802 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a compensable evaluation for residuals of
frozen feet.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
G. A. Wasik, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1944 to June
1946.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of an August 1994 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) that denied the
veteran's claim of entitlement to a compensable evaluation
for frozen feet.
The issue on appeal was originally before the Board in March
1998 at which time it was remanded for additional evidentiary
development.
In correspondence dated in December 1997, the veteran
requested a change of representatives from The American
Legion to Disabled American Veterans. The Board wrote to the
veteran asking him to execute the appropriate form if he
wanted to change representation. In a statement received at
the Board in September 2000, the veteran reported that he did
not desire to change representatives.
FINDINGS OF FACT
1. Although the veteran complains of foot pain, which he
relates to service-connected frozen feet, there is no medical
evidence or diagnosis showing that the pain is a residual of
the in-service cold injury.
2. There is no competent evidence of chilblains or of any
other pathology due to frozen feet.
3. Neither the old nor the current criteria for evaluation
of residuals of cold injuries are more favorable towards the
veteran's claim.
CONCLUSION OF LAW
The criteria for a compensable evaluation for residuals of
frozen feet have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code
7122 (1998); 63 Fed. Reg. 37,778-79 (1998); 38 C.F.R. §
3.321, 4.104, Diagnostic Code 7122 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The service medical records reveal the veteran was
hospitalized for bilateral trench foot from January to March
of 1945. Treatment records dated in January 1945 include
complaints of severe pain in the metatarsal phalangeal joints
of both feet. It was noted that the damage to the veteran's
feet seemed only moderate. In February 1945, he continued to
complain of pain in the feet and also reported increasing
sensory disturbance. It was noted that the veteran's toes
showed a drawing effect. In March 1945, it was reported that
he was being returned to rehabilitation and limited duty.
The hospitalization for trench foot was noted on the report
of the separation examination conducted in June 1946. The
veteran's feet were found to be normal on physical
examination at that time.
The RO granted service connection for frostbite of the feet
and bilateral trench foot in January 1947. The disabilities
were found to be zero percent disabling.
The veteran's claim for an increased rating for his residuals
of frozen feet was received at the RO in June 1994.
VA outpatient treatment records have been associated with the
claims file. In June 1994 the veteran was seen for a
complaints of cold legs with muscle spasms at night. On
physical examination femoral and pedal pulses were palpable,
left greater than right. The posterior tibial pulse was
palpable, right greater than left. The toes on the right
foot were cold to the touch, and the legs had minimum hair
growth. The assessment was decreased vascular function of
the right lower extremity. A fasting blood sugar was to be
done. A subsequent treatment record of June 1994 indicates
that the veteran was still reporting constant pain in his
feet. He was noted to be a past smoker. The assessment at
that time was peripheral neuropathy. In July 1994, the
veteran complained of cramps in the feet. Physical
examination revealed no edema, and the nails were within
normal limits. The dorsalis pedis pulses were 2+
bilaterally. The feet were warm and showed a loss of hair.
It was noted that the veteran's toes began cramping during
the examination. The assessment was muscle cramps.
The veteran was seen at a VA podiatry clinic in August 1994,
and reported that his feet and legs cramped and had bothered
him since his feet were frozen in World War II. Physical
examination revealed that the pedal pulses were palpable.
The skin temperature was cool, and hair growth was present on
the toes. Palpable tenderness was present in the plantar
fascia bilaterally. The assessment was bilateral plantar
fasciitis. The veteran was told to take quinine in the
evening.
The report of an August 1994 VA examination of the feet has
been associated with the claims file. The veteran indicated
that his feet hurt all the time and the pain increased in
cool or damp weather. He stated that the pain in his feet
seemed to radiate more from the heel up into the leg.
Physical examination revealed standing, squatting,
supination, and pronation were normal. Gait was normal and
the veteran was able to walk on his heels and toes and on the
inner and outer edges of the feet. The appearance of the
feet was normal with good color and normal circulation.
There was no deformity of either foot. Dorsiflexion of both
ankles was normal as was plantar flexion. There were no
secondary skin changes and the veteran had good pulses in
both feet. The diagnoses were negative physical examination
of both feet and history of frostbite in 1945.
A VA outpatient record dated in December 1994 reveals that
the veteran was complaining of cold and pain in his feet. No
physical examination was conducted. The assessment was
residuals of frozen feet and bilateral plantar fasciitis. In
January 1995, the veteran reported that he was still having
pain from frozen feet.
A VA examination for diseases of the arteries and veins was
conducted in May 1995. The veteran complained at that time
of pain in his feet and legs following exercise. He reported
he was able to walk a mile or more without problems and then
would experience cramps in his feet and legs. The problem
had been increasing in severity over the years, according to
the veteran, and he reported having had pain in his feet in
cool and damp weather since service, when he sustained
frostbite. He reported that he had been seen approximately a
year earlier and that there had been no basic change since
then. Physical examination of the feet revealed normal
color, no evidence of dystrophy or atrophy, palpable femoral,
popliteal and dorsalis pedis pulses. There was recurrent
spontaneous dorsiflexion of the big toes that lasted for
several seconds and then resolved. Skin temperature was
normal to the touch. No paresthesias were noted and there
was no obvious cardiac involvement. X-rays of the feet were
within normal limits. The final diagnoses were history of
frostbite in 1945 with no current clinical evidence of any
lower extremity pathology and hypertension.
In a VA outpatient record dated in September 1995, it was
noted that the veteran's main complaint was pain from
residuals of frozen feet. A podiatry consultation was
conducted in May 1996. It was noted at that time that
inserts in the veteran's shoes helped the pain in the bottom
of the feet a little but his feet still hurt most of the
time. The pedal pulses were 3/5 bilaterally, skin texture
was good, and skin temperature was mildly cool. Palpable
tenderness was present in the plantar fascia bilaterally.
The assessment was possible neuropathy of the feet. In July
1996, there was an assessment of possible neuropathy
secondary to frostbite. The veteran was referred for a
neurological evaluation at the Gainesville VA Hospital. No
report of any neurological evaluation is of record and the
Gainesville facility wrote in May 1998 that all outpatient
records from June 1995 to the present had been sent.
When the veteran was seen at a VA outpatient clinic in April
1997, the assessments were hypertension and residuals of
frostbite. When he was seen in July 1997 there was an
impression of spastic paresis. In April 1998, he complained
of leg pains at night. It was noted that he had pain in both
feet and also sporadic spasms in the legs. Objective review
was negative. The assessments were residual of frostbite and
nocturnal leg cramps.
The most recent VA examination of the veteran's feet was
conducted in September 1998. He complained of pain in the
feet and reported a history of frostbite in 1946 and of an
infection of the feet that resolved with penicillin. Since
then, he had noted cold intolerance and almost daily pain in
the feet. He denied any symptoms consistent with
claudication and symptoms consistent with rest pain. He
reported intermittent swelling in both feet typically after a
long period of standing. He denied any loss of sensation to
either foot or any unusual sweating patterns. The veteran
reported that he was beginning to experience joint swelling
in his hands and simultaneously in his feet, indicating that
an outside physician informed him the swelling was consistent
with arthritis.
Physical examination revealed that femoral, popliteal,
dorsalis pedis and posterior tibial pulses were easily
palpable bilaterally. There was no evidence of chronic
venous stasis disease. 1-2+ pitting edema from the ankle to
the mid tibia was present. No chilblains were noted. There
was no tenderness or redness of either foot. It was noted
that the veteran complained of pain in the feet but pain
could not be elicited with movement of the feet or toes.
Sensation was reported as good in both feet. The veteran
reported he had cold sensitivity, but such could not be
elicited on the examination. There was no evidence of tissue
loss and no specific abnormality of the toenails. No color
changes were present in the feet, and there was no impaired
local sensation or hyperhidrosis. X-ray studies of the feet
were not taken. The impression was that the examination was
a normal peripheral vascular examination with no physical
evidence of lower extremity abnormalities. It was noted that
previous examinations had also failed to document physical
evidence of lower extremity abnormalities "yet the veteran
continues to complain of injuries related to frostbite."
The examiner reported that it was not possible to demonstrate
any physical findings consistent with frostbite at the time
of the examination.
Criteria
Disability evaluations are determined by the application of a
schedule of ratings which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic
codes identify the evaluations to be assigned to the various
disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. In assessing a claim for
increased rating, it is the present level of disability that
is of primary concern. Francisco v. Brown, 7 Vet. App. 55,
58 (1994).
The Board notes the portion of the rating schedule pertaining
to cold injuries has been amended. These amendments became
effective on January 12, 1998, during the pendency of the
veteran's appeal. See Schedule for Rating Disabilities; The
Cardiovascular System, 62 Fed. Reg. 65207-65224 (1997) (now
codified at 38 C.F.R. § 4.104 (1998)). Generally, when the
laws or regulations change while a case is pending, the
version most favorable to the claimant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991). In the instant case, the new
regulations were considered and applied by the RO.
Furthermore, the appellant was provided with appropriate
notice of same in the supplemental statement of the case
dated in October 1998.
The criteria were again revised, effective August 13, 1998.
63 Fed. Reg. 37778 (July 14, 1998). However, a review of the
changes effective August 13, 1998, reveals that the changes
do not substantially affect the application of Diagnostic
Code 7122. Therefore, there is no prejudice to the appellant
by the Board's initial consideration of these revised
regulatory criteria. Bernard v. Brown, 4 Vet. App. 384
(1993).
Under the rating criteria in effect prior to January 12,
1998, for residuals of frozen feet, a 10 percent disability
evaluation is provided for mild residuals of frozen feet or
chilblains. The next higher evaluation of 30 percent
requires bilateral persistent moderate swelling, tenderness,
redness, etc. A 50 percent rating requires bilateral loss of
toes, or parts, and persistent severe symptoms. 38 C.F.R. §
4.104, Diagnostic Code 7122 (effective prior to January 12,
1998).
Under the rating criteria currently in effect, residuals of
cold injuries manifested by arthralgia or other pain,
numbness, cold sensitivity warrants a 10 percent disability
evaluation. When there are cold injury residuals with pain,
numbness, cold sensitivity or arthralgia plus tissue loss,
nail abnormalities, color changes, locally impaired
sensation, hyperhidrosis, or X-ray abnormalities
(osteoporosis, subarticular punched-out lesions, or
osteoarthritis) of affected parts then a 20 percent
disability evaluation is warranted. When there are cold
injury residuals with pain, numbness, cold sensitivity, or
arthralgia plus two or more of the following: Tissue loss,
nail abnormalities, color changes, locally impaired
sensation, hypohidrosis, X-ray abnormalities (osteoporosis,
subarticular punched-out lesions, or osteoarthritis) of
affected parts then a 30 percent disability evaluation is
warranted. 38 C.F.R. § 4.104, Diagnostic Code 7122
(effective January 12, 1998).
Consistent with the Court's decision in Karnas v. Derwinski,
1 Vet. App. 308 (1991), the Board will discuss the veteran's
disability with consideration of the criteria effective both
prior and subsequent to January 12, 1998. Because his claim
was filed before the regulatory change occurred, he is
entitled to application of the version most favorable to him
on and after that date. Id.
VA's General Counsel has interpreted Karnas to mean that
where a law or regulation changes during the pendency of a
claim for increased rating, the Board should first determine
whether the revised version is more favorable to the veteran.
In so doing, it may be necessary for the Board to apply both
the old and new versions of the regulation. If the revised
version of the regulation is more favorable, the retroactive
reach of that regulation under 38 U.S.C.A. § 5110(g) (West
1991), can be no earlier than the effective date of that
change. The Board must apply only the earlier version of the
regulation for the period prior to the effective date of the
change. VAOPGCPREC 3-2000 (2000).
Analysis
The Board notes that the veteran's claim is "well-grounded"
within the meaning of 38 U.S.C.A. § 5107. That is, the Board
finds that he has presented a claim that is plausible. The
Board is also satisfied that all relevant facts have been
properly developed. No further assistance to the veteran is
required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107.
The service-connected residuals of frozen feet are currently
evaluated as zero percent disabling under Diagnostic Code
7122. The only clinical evidence of record indicating that
the veteran currently experiences residuals of frozen feet is
included in two VA outpatient treatment records. These
records include assessments of residuals of frozen feet
(December 1994) and residuals of frostbite (April 1998).
However, these records show that no physical examination was
conducted in December 1994 and that an objective assessment
conducted in April 1998 was negative.
The other evidence includes results of three VA examinations
conducted in August 1994, May 1995 and September 1998. The
August 1994 examination resulted in diagnoses of negative
physical examination of both feet and history of frostbite in
1943. Thus, this examination did not produce findings of any
residuals of the remote cold injury. In August 1994 the
veteran also was seen by a podiatrist who noted the veteran's
complaints of foot and leg cramps since his feet were frozen
during service but diagnosed plantar fasciitis. The doctor
did not relate plantar fasciitis to any in-service cold
injury so there is no basis for considering such to be a
residual of the cold injury. The May 1995 examiner
specifically noted that the veteran had a history of
frostbite in service with no current clinical evidence of any
lower extremity pathology. Although the examiner noted the
veteran's complaints of pain in his feet and legs after
exercise, the diagnoses did not include pain as a residual of
cold injury. The September 1998 examiner also noted the
veteran's history but could find no evidence of any lower
extremity abnormalities and noted that although the veteran
continued to complain of frostbite related injuries, a
peripheral vascular examination was normal. That examiner
did not diagnose pain as a residual of in-service cold
injury. The Board places significant weight on the findings
of the three VA examinations since they appear to have been
thorough and were conducted specifically to determine the
nature and extent of any residuals of frozen feet. The
examination reports reflect that although the veteran's
subjective complaints were noted, no residuals of frozen feet
were found and no examiner diagnosed pain as a residual of
frozen feet. Thus, this evidence does not support a
compensable rating under the old or current rating criteria
since the veteran's complaints are note shown to constitute
mild symptoms of frozen feet, he is not shown to have
chilblains, and no competent medical evidence attributes his
subjective complaints of pain (or cramping or the like) to
the remote cold injury.
Other VA outpatient treatment records include references to
painful, cramping and/or cold feet. However, these symptoms
were not attributed to cold injury. Although a May 1996 VA
podiatry consultation notes possible neuropathy of the feet
and a VA outpatient treatment record dated in July 1996
includes the assessment of possible peripheral neuropathy
secondary to frostbite, the evidence does not show a
confirmed diagnosis of peripheral neuropathy that is related
to the service-connected cold injury.
The veteran's own allegations of experiencing residuals of
frozen feet have been considered. However, as he is a lay
person he is not competent to make a medical diagnosis or to
relate symptoms to a specific cause. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the veteran is
competent to report he experiences pain in his feet but he is
not competent to attribute the pain to residuals of frozen
feet.
Furthermore, as cold injury residuals are a disability for
which a specific diagnostic code exists under the Rating
Schedule, an evaluation by analogy to another diagnostic code
is not appropriate in this case; therefore, there is no other
diagnostic code that could potentially provide a basis for
the assignment of a compensable evaluation for either foot.
For the foregoing reasons, the Board finds that a compensable
evaluation is not warranted for either foot under the old or
current criteria for evaluation of cold injuries and that
neither regulation is more favorable to the veteran. See
Karnas; VAOPGCPREC 3-2000 (2000).
ORDER
A compensable evaluation for residuals of frozen feet is
denied.
JANE E. SHARP
Veterans Law Judge
Board of Veterans' Appeals